§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`21A Fed. Prac. & Proc. Evid. § 5054.1 (2d ed.)
`
`Federal Practice & Procedure
`Federal Rules Of Evidence
`Database updated April 2015
`Kenneth W. Graham, Jr. a385
`Federal Rules of Evidence
`Chapter 2. Administration of Rules of Evidence
`Kenneth W. Graham, Jr. a409
`Rule 104. Preliminary Questions
`
`Link to Monthly Supplemental Service
`
`§ 5054.1 Preliminary Fact Determinations by Jury—Scope of Rule 104(b)
`
`Primary Authority
`Fed. R. Evid. 104
`
`We have seen that “conditional relevance” lacks the sort of determinacy one expects of procedural rules designed to cover
`repetitive evidentiary problems. 1 We have suggested that in view of the definitional deficiencies of Rule 104(b), courts
`should determine what preliminary questions of fact fall within the special procedural regime it establishes by consulting the
`policy of Rule 104, those matters that other Rules designate for 104(b) treatment, and the precedents. 2 This section explores
`the scope of Rule 104(b) using those techniques. 3
`Personal knowledge
`The question of whether a witness has personal knowledge within the meaning of Rule 602 is a 104(b) preliminary question
`of fact. 4 Since the procedural consequences of that designation have been spelled out in another volume, here we need only
`explain what light that designation sheds on the meaning of “conditional relevance.” 5
`The importance of Rule 602 arises from the fact that personal knowledge provides one of the epistemological anchors for our
`adversary system of factfinding. 6 Since few judges specialize in Cartesian philosophy, it is fortunate that the requirement of
`personal knowledge also reflects the common sense belief that in determining the facts, it makes no sense to rely on people
`who literally “do not know what they are talking about.” 7 Since jurors can readily grasp and easily apply the Rule, policy
`might suggest that personal knowledge could well be left to the jury without the need for any judicial intervention into their
`finding of this preliminary question. 8
`Since few witnesses would testify that they “channeled” the facts to which they wish to testify, usually witnesses think they
`know something they did not see either because someone else told them about it or because they have inferred it from things
`that they did see; in other words, the requirement of personal knowledge backstops the hearsay and opinion rules. 9 Since
`jurors may be less appreciative of and less willing to enforce the hearsay and opinion rules, policy might also suggest that
`personal knowledge be treated as a 104(a) fact for the judge under the heading of the “qualifications” of the person to be
`a witness. 10
`But giving the judge complete control under Rule 104(a) might lead to an excessively stringent enforcement; jurors may be
`more tolerant than the judge of the foibles of perception and memory that plague all humans. 11 Rigorous enforcement of the
`personal knowledge requirement clashes with the general policy of the Evidence Rules, exemplified by the abolition of all
`rules of competence by Rule 601, favoring admission and evaluation over exclusion as method of insuring the reliability of
`evidence. 12 Finally, giving the judge the power to exclude for lack of personal knowledge allows her to usurp the exclusive
`role of the jury in determining the credibility of witnesses. 13
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`1
`
`Exxhibit 1058
`CBM2014-00131
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`Placing personal knowledge within the 104(b) regime rather than crafting some other procedural compromise between the
`conflicting values has the advantage of following a single model rather than proliferating procedures and standards. 14 But
`while personal knowledge resembles other 104(b) preliminary facts in its concern for probative value 15 , we should keep
`in mind that it is a “specialized application.” 16 Unlike other 104(b) facts, which must be based on admissible evidence 17 ,
`Rule 602 allows the witness to prove her own personal knowledge. 18
`Authentication
`Like relevance, authentication of writings and objects is “an inherent logical necessity”; before the factfinder can reliably
`draw an inference from a physical object, they must know that the object is what the proponent claims it is. 19 Since most
`writings are genuine, not forged, and since the proponent is unlikely to offer an object without some witness to identify it,
`the preliminary fact of authenticity might be safely left to the common sense of the jury. 20 On the other hand, jurors are
`supposed to make the common inferential error summed up in the saying that “one picture is worth a thousand words”; that
`is, when the witness says “if you don't believe he hit me, look at this picture of my face”, the juror can easily overlook the
`need to consider the implied claim that the injuries depicted in the photo were in fact inflicted by the defendant. 21 Judicial
`intervention may also be required to prevent manipulation of the doctrine by proponents who understand they can lower the
`requirement for authentication by making more modest claims about the object 22 ; for example, claiming only that “this is the
`dope that was found on the ground near where the defendant was arrested” rather than “this is the dope the defendant threw
`on the ground when he saw the officers approaching.” 23 Moreover, since most writings also raise hearsay issues whose
`preliminary facts Rule 104(a) allocates to the judge, the judge will already be deeply involved in questions of preliminary fact
`when an authentication issue arises. 24 But giving the preliminary facts for authentication solely to the judge would allow
`her to decide the case under the guise of determining the admissibility of evidence in cases in which the preliminary fact
`coincides with a consequential fact; for example, is this Grandma's will or is that defendant's dope? 25
`Rule 901 provides for shared responsibility for the determination of the authenticity of evidence. 26 The judge controls the
`ability of counsel to lower the burden of authentication by determining whether the modest claim of authenticity meets the
`standard of relevance in Rule 401 or whether its probative worth when authenticated in this fashion is outweighed by the
`danger that the jury will too readily use it for some other purpose that the evidence should be excluded under Rule 403. 27
`If the judge does not exclude the evidence on these grounds, she can only keep it from the jury if no reasonable jury could
`find the evidence was authentic. 28 While in theory the ultimate determination of authenticity is to be made by the jury 29 ,
`as a practical matter lawyers reportedly rarely ask to have the jury instructed about their duty to determine the preliminary
`question of authenticity before they use the evidence. 30 If the issue is submitted to the jury, it is usually thought that they
`must find that the preponderance of the evidence supports authenticity. 31
`Courts should use caution in using Rule 901 as more than an analogy in determining how to proceed in the cases of other
`evidence that may need “connecting up” to make it admissible. 32 Rule 901 is a “specialized application” of Rule 104(b) 33 —
`with the emphasis on “specialized.” 34 To treat it as a “specific application” of Rule 104(b) ignores some ways in which
`authentication may differ from the procedure prescribed for cases of conditional relevance. 35 For example, Rule 902 takes
`many of the problematic instances of authentication away from the jury and leaves them to be determined by the judge
`alone. 36 As a 104(a) question of preliminary fact, the judge can use inadmissible evidence to determine self-authentication
`—which neither he nor the jury can do under Rule 104(b). 37 Moreover, self-authentication under Rule 902 allows the judge
`to, in effect, direct a verdict on the question of authentication—a dubious procedure under both Rule 901 and under Rule
`104(b) generally. 38
`The Best Evidence Rule
`Rule 1008 so differs from the so-called “specialized applications” that the Advisory does not even make that claim for it. 39
`The so-called “best evidence rule” contains a core of common sense entombed in the amber of centuries of technicality. 40
`The modern documentary originals rule tries to balance the danger of fraud and simple error in copies of, or testimony about,
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`2
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`important documents against the costs of avoiding these dangers by excluding too much evidence that probably lacks these
`flaws. 41 Because the jury may fail to appreciate and abide by the technicality, most preliminary questions of fact regarding
`the admissibility of secondary evidence of the contents are assigned to the judge under Rule 104(a). 42 This allocation also
`furthers efficiency by allowing the judge to rely on inadmissible evidence to prove preliminary questions of fact unlikely
`to be seriously contested in most cases except as a strategy to make the opponents task costly; e.g., that the original of the
`document cannot be found. 43
`However, every case in which the documentary originals rule is invoked will usually raise questions of authenticity as
`well, questions that the jury has the institutional competence to handle. 44 And, as in the case of stand-alone problems of
`authenticity, to allow the judge to determine the preliminary questions of fact would tend to undermine the jury's constitutional
`role as factfinder. 45 From these policy considerations and the language of Rule 901, courts might have been able to figure
`out for themselves that these embedded issues of authenticity should also go to the jury; but just to make sure, the Advisory
`Committee added Rule 1008 to spell this out. 46
`Rule 1008 allocates all other preliminary questions of fact regarding the best evidence rule to the judge under Rule 104(a). 47
`But the Rule takes three issues of authenticity away from the judge and sends them to the jury to be determined “as in the
`case of other issues of fact.” 48 These issues are whether the claimed original ever existed, whether another writing is in fact
`the original, and whether other evidence of the contents accurately reflects the contents. 49 As to these issues, the judge must
`admit the evidence unless no reasonable jury could find authenticity. 50
`While some state drafters thought Rule 1008 was just another “specific application” of Rule 104(b) 51 , Judge Miller seems
`to have better captured Rule 1008 when he describes it as a sort of “mini-version of Rule 104” because it allocates power
`between judge and jury on a single issue much as Rule 104 tries to do for the entire corpus of evidence law. 52 This makes
`Rule 1008 a better model than Rule 104(b) 53 in cases where the court wants to impose limits on the power of courts under
`Rule 104(a) in order to preserve the constitutional role of the jury. 54
`Rule 104's bifurcation boundary eroded
`Prior to codification, the common law of many states regarding preliminary questions of fact was a mess; a supposed uniform
`principle with so many ad hoc exceptions that it was difficult to predict what courts would do with respect to issues never
`adjudicated. 55 Rule 104 sought to end this chaos by dividing preliminary questions of fact into two groups and subjecting
`each to a different but uniform standard. 56 While it is too early to predict a return to the common law chaos, courts have
`already begun to erode the Advisory Committee's neat bifurcation in pursuit of greater fairness, heedless of the effect this
`may have on the efficiency of the courts. 57
`For example, at common law most courts had required that when evidence of other crimes, acts, or wrongs was admissible for
`some noncharacter purpose, it had to be proved by some higher standard, normally by “clear and convincing” evidence. 58
`When Rule 404(b) went into effect, courts and state drafters generally assumed that because of the importance the Advisory
`Committee placed on judicial discretion under Rule 403, that the preliminary facts for the admissibility of other crimes
`evidence belonged to the trial judge under Rule 104(a). 59 But as we have seen, the Supreme Court held that preliminary
`questions of fact only had to be proved by a preponderance of the evidence. 60 Subsequently, for reasons not entirely clear,
`the Court held that preliminary facts regarding the admissibility of other crimes evidence were questions for the jury under
`Rule 104(b). 61
`The Supreme Court's suggestion that any rule that evolved from the common law doctrine of legal relevance fell within Rule
`104(b) breached the Advisory Committee's neat bifurcation, opening the dike for further erosions. 62 The natural next step
`was to shift preliminary facts regarding the admissibility of character evidence under Rule 404(a) to the jury. 63 Then moving
`from Rule 404 to Rule 608, the admissibility of prior false accusations of rape by a sexual assault victim that turned on a
`question of fact were turned over to the jury. 64 Also, whether the defendant is the person named in a record of conviction is
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`3
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`a 104(b) preliminary fact. 65 Meanwhile, some states began to erase limits barring criminal defendants from making the so-
`called “Perry Mason defense” by moving the preliminary facts to Rule 104(b) so as to lower the standard of proof. 66
`Since some state courts had common law rules requiring the admissibility of hearsay to be submitted to the jury, erosion of
`judicial control over proof of preliminary questions of fact easily emerged in that area. 67 One state holds that the jury must
`decide the preliminary facts to the admissibility of prior consistent statements. 68 Another takes the same position regarding
`authorized admissions. 69 Some writers have said that the jury determines the preliminary facts for straight admissions,
`but it is unclear whether they limit this to cases of written admissions where there is an overlap between hearsay and
`authentication. 70 So far, however, federal courts seem to be holding fast against the tide. 71
`Distinguish the case of states that still hold to the “second crack doctrine”; e.g., where the jury determines the preliminary
`fact only after the judge decides in the facts in favor of admission. 72
`One court has suggested that authentication of electronically stored information is a two-step process: first, the court
`determines they jury could reasonably find the evidence is authentic; second, the jury decides whether the evidence is what
`its proponent claims. 73
`
`Westlaw. © 2015 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
`
`Footnotes
`a385
`a409
`1
`
`Professor Of Law Emeritus, University of California, Los Angeles.
`Professor Of Law Emeritus, University of California, Los Angeles.
`
`Lacks determinacy
`We should find this particularly troubling because Rule 104(b) not only defines those preliminary facts subject to its special
`procedural regime but because it indirectly controls the scope of Rule 104(a), the default rule for all matters that do not fall
`within Rule 104(b).
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`Precedents
`See § 5054, above.
`
`Scope of Rule 104(b)
`Since Rule 104(b) cannot go beyond the scope of Rule 104 itself, readers may find it helpful to consult § 5053.4, which deals
`with that subject.
`
`A 104(b) fact
`See Advisory Committee's Note, Rule 602.
`State v. Bryant, R.I. 2006, 888 A.2d 965, 972 (in applying Rule 602, trial judge can exclude only if she finds that the witness
`could not have perceived the fact; if a jury could find personal knowledge, the judge should admit the evidence and leave
`the issue to the jury).
`
`Consequences spelled out
`See vol. 27, § 5027.
`
`Epistemological anchors
`By that we mean that is that the entire logic of our law of evidence rests upon belief that humans can know the external world
`through their capacity to perceive. See vol. 27, § 6022, p. 192. Judicial notice provides the other epistemological anchor.
`See § 5102, below.
`
`“Do not know”
`See vol. 27, § 6022, p. 189.
`
`Policy might suggest
`See § 5052, above.
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`4
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Backstops hearsay and opinion
`See vol. 27, § 6022, p. 190.
`
`“Qualifications”
`See § 5053.1, above.
`
`Foibles of perception
`See vol. 27, § 6022, p. 195.
`
`Favoring admission
`See vol. 27, § 6022, p. 195.
`
`Credibility
`See vol. 27, § 6022, p. 195.
`
`Following model
`1 Robinson, Longhofer & Ankers, Michigan Court Rules Practice: Evidence, 2d ed.2002, p. 67.
`
`Probative value
`7 Adams & Weeg, Iowa Practice: Evidence, 2002, pp. 70–71.
`
`“Specialized application”
`1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 84; Larson, South Dakota Evidence, 1996, p. 40.
`
`Based on admissible
`See § 5055, below.
`
`Prove her own
`See vol. 27, § 6028.
`
`“Logical necessity”
`See vol. 31, § 7102, p. 13.
`
`Left to jury
`See vol. 31, § 7102, p. 13.
`
`But see
`7 Adams & Weeg, Iowa Practice: Evidence, 2002, p. 71 (writings and objects always require some witness to “connect them
`up”).
`
`Inferential error
`See vol. 31, § 7102, p. 13.
`
`Making modest claims
`Since authentication only requires proof that the writing “is what the proponent claims it is”, the proponent would have to
`prove that Grandma signed the will if the will is offered as “Grandma's will”; but if the proponent only claims that “this is the
`will that was found in Grandma's safe deposit box after her death”, he only has to prove those facts and hope that the jurors
`will infer Grandma's signing from the signature and the place the will was found. See vol. 31, § 7102, p. 31.
`
`“Threw on ground”
`Sophisticated jurors may be aware that such “dropsey testimony” is frequently fabricated by police officers to avoid Fourth
`Amendment problems and use that knowledge to discredit other testimony of the officers. By making the more modest claim,
`the prosecutor can keep the lying officer away from the jurors by only calling officers who did not arrive on the scene until
`after the arrest and seizure. But this raises a question of relevance for the judge; can the jury infer possession from mere
`proximity to contraband?
`
`Allocates to judge
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`5
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`31
`
`32
`
`33
`
`34
`
`35
`
`36
`
`37
`
`See § 5053.3, above.
`
`Defendant's dope
`See vol. 31, § 7102, p. 16.
`
`But see
`U.S. v. Tatum, 548 F.3d 584, 587 (7th Cir. 2008) (authenticity of crack cocaine a Rule 104(a) question for the judge).
`
`Shared responsibility
`U.S. v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002) (authenticity).
`Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (same).
`1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 132 (language of Rule 901 “clearly” contemplates some role for
`the jury).
`
`Excluded under Rule 403
`See vol. 31, § 7102, p. 22.
`For example, if a party wishes to have a witness testify that she received a threatening phone call without authenticating its
`source, the danger that the jury will too readily imply that the call came from the opponent or his supporters without any
`evidence other than the content of the call might justify such exclusion.
`
`No reasonable jury
`1 Robinson, Longhofer & Ankers, Michigan Court Rules Practice: Evidence, 2d ed.2002, p. 67; 1 Goode, Wellborn & Sharlot,
`Guide to the Texas Rules of Evidence, 3d ed.2002, p. 40.
`
`See also
`State v. Bradford, 175 Wash. App. 912, 308 P.3d 736 (Div. 1 2013) (text messages).
`
`Made by jury
`Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 29.
`
`Rarely ask
`1 Weinstein & Berger, Weinstein's Evidence, 2d ed.1996, p. 104-68.
`
`Preponderance
`1 Robinson, Longhofer & Ankers, Michigan Court Rules Practice: Evidence, 2d ed.2002, p. 67.
`
`But see
`5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 97 (“lesser burden” applies to authentication; not clear if refers
`to the judge's screening or the jury's ultimate determination).
`
`“Connecting up”
`7 Adams & Weeg, Iowa Practice: Evidence, 2002, p. 71.
`
`“Application” of 104(b)
`1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 84.
`
`“Specialized”
`Larson, South Dakota Evidence, 1996, p. 40.
`
`“Specific application”
`Advisory Committee Comment, Minn.R.Ev. 104(b), in 11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 52.
`
`Takes from jury
`See vol. 31, § 7134, p. 186 (self-authentication preliminary facts for judge under Rule 104(a)).
`
`Use inadmissible
`See § 5055, below.
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`6
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`38
`
`39
`
`40
`
`41
`
`42
`
`43
`
`44
`
`45
`
`46
`
`47
`
`48
`
`49
`
`50
`
`51
`
`52
`
`53
`
`54
`
`55
`
`Direct verdict
`See § 5054.2, below.
`
`Does not claim
`Advisory Committee's Note, Rule 1008 (simply citing Rule 104(b) with a “see” signal).
`
`Centuries of technicality
`Like other rules dealing with writings, many of these are probably vestiges from the days when the ability to read and write
`was monopolized by the privileged classes and was used to secure their property interests. See § 5001, above.
`
`Tries to balance
`See vol. 31, § 7162.
`
`Fail to appreciate
`See vol. 31, § 8062, p. 571.
`
`Cannot be found
`Instead of wasting court time hearing from all the persons who searched for the lost original, the court can rely on counsel's
`conclusory oral avowal of the results of that search. See § 5055, below.
`
`Jury has competence
`See vol. 31, § 8062, p. 572.
`
`Undermine jury's role
`Advisory Committee's Note, Rule 1008 (“If the judge decides [the preliminary question of authenticity] and excludes the
`secondary evidence, the case is at an end without ever going to the jury on a central issue.”).
`
`See also
`See vol. 31, § 8062, p. 572.
`
`Added to spell out
`See vol. 31, § 8062, p. 573.
`
`Most for judge
`Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 29.
`
`“Other issues of fact”
`1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 132.
`
`Accurately reflects contents
`Evidence Rule 1008.
`
`No jury could find
`1 Robinson, Longhofer & Ankers, Michigan Court Rules Practice: Evidence, 2d ed.2002, p. 67.
`
`“Specific application”
`Advisory Committee Comment, Minn.R.Ev. 104(b) in 11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 52.
`
`“Mini-version”
`12 Miller, Indiana Practice: Indiana Evidence, 2d ed.1995, p. 83.
`
`Better model
`Larson, South Dakota Evidence, 1996, p. 40.
`
`Impose limits
`Weissenberger & Duane, Federal Rules of Evidence, 2001, p. 26.
`
`Difficult to predict
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`7
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`56
`
`57
`
`58
`
`59
`
`60
`
`61
`
`62
`
`63
`
`64
`
`65
`
`66
`
`67
`
`68
`
`69
`
`See, e.g., Cal.Law.Rev.Comm'n, Tent.Rec. and Study of U.R.E., Art. I. General Provisions, 1964, pp. 73–74.
`
`Uniform standard
`1 Cleckley, Handbook on Evidence for West Virginia Lawyers, 3d ed.1994, p. 30.
`
`Begun to erode
`See § 5053.3, above.
`
`Other crimes
`See vol. 22, § 5049.
`
`Belonged to judge
`See, e.g., Comment, Prop.N.Y.Evid.Code § 404(b), 1982; U.S. v. Byrd, C.A.7th, 1985, 771 F.2d 215, 222 n. 4; State v.
`Matteson, Minn.1979, 287 N.W.2d 408.
`
`Preponderance
`Bourjaily v. U.S., 1987, 107 S.Ct. 2775, 483 U.S. 171, 97 L.Ed.2d 144, discussed in § 5053.6, above.
`
`Questions for jury
`Huddleston v. U.S., 1988, 108 S.Ct. 1496, 485 U.S. 681, 99 L.Ed.2d 771.
`
`See also
`For more detailed discussion of Huddleston, see § 5053.3, above.
`Fischer v. State, 268 S.W.3d 552, 557 (Tex. Crim. App. 2008) (changing prior state law to conform).
`
`Legal relevance
`See vol. 22, § 5232.
`
`Under 404(a)
`State v. Brooks, La.App.1999, 734 So.2d 1232, 1238 (error for trial judge to resolve questions of credibility and exclude
`character evidence on that ground).
`
`False accusations
`Pugh, Force, Rault & Triche, Handbook on Louisiana Evidence Law, 2002, p. 294.
`
`Name in conviction
`Perez v. State, Tex.App.2000, 21 S.W.3d 628, 630.
`
`“Perry Mason” defense
`Field & Murray, Maine Evidence, 2000, p. 35.
`
`See also
`The “Perry Mason” defense attempts to prove that someone other than the defendant committed the crime for which he is
`charged. Many state and federal courts have held that the defense must be proved by a higher standard proof than the one
`required to indict a defendant. See vol. 22, § 5180.1 (Supp.).
`
`Hearsay
`1 Goode, Wellborn & Sharlot, Guide to the Texas Rules of Evidence, 3d ed.2002, p. 37 (prior law required preliminary facts
`of coconspirator exception to be decided by jury).
`
`Prior consistent
`Field & Murray, Maine Evidence, 2000, p. 36.
`
`See also
`Burlington Northern R.R. Co. v. Hood, Colo.1990, 802 P.2d 458 (whether person made a prior inconsistent statement is a
`104(b) fact).
`
`Authorized admissions
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`8
`
`

`

`§ 5054.1Preliminary Fact Determinations by Jury—Scope of..., 21A Fed. Prac. &...
`
`70
`
`71
`
`72
`
`73
`
`McLain, Maryland Practice: Maryland Rules of Evidence, 2002, p. 40.
`
`Straight admissions
`Konop v. Rosen, 425 N.J. Super. 391, 41 A.3d 773, 791 (App. Div. 2012) (taking this position).
`State v. McNeeley, 2000, 8 P.3d 212, 215, 330 Or. 457 (whether defendant was the person who made incriminating statements
`to jailhouse snitch is a 104(b) fact).
`
`See also
`Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 29.
`
`Federal holding fast
`See, e.g., Precision Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., C.A.4th, 1991, 951 F.2d 613 (applying
`104(b) to various 801(d)(2) hearsay exemptions).
`
`See also
`Other authorities collected in § 5053.3, above.
`
`“Second crack”
`The doctrine is usually limited to admissions of criminal defendants that amount to a “confession.” See, e.g., McLain,
`Maryland Practice: Maryland Rules of Evidence, 2002, p. 37.
`
`See also
`The doctrine is discussed in § 5053.4, above.
`
`Two-step process
`Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007).
`
`End of Document
`
`© 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`9
`
`